QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
2 Park Street, Cardiff CF10 1ET
B e f o r e :
| THE QUEEN on the application of
UK RECYCLATE LIMITED
SMURFIT KAPPA UK
PALM RECYCLING LIMITED
D S SMITH PAPER LIMITED
NOVELIS UK LIMITED
PLASTICS SORTING LIMITED
ARDAGH GLASS LIMITED
|- and -
|THE SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS
THE WELSH MINISTERS
|- and -
LOCAL GOVERNMENT ASSOCIATION
WELSH LOCAL GOVERNMENT ASSOCIATION
ENVIRONMENTAL SERVICES ASSOCIATION
WELSH ENVIRONMENTAL SERVICES ASSOCIATION
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Clive Lewis QC and Justine Thornton (instructed by the Treasury Solicitor) for the First Defendant
Clive Lewis QC and Justine Thornton (instructed by the Director of Legal Services, Welsh Government) for the Second Defendant
Karen Steyn (instructed by Wragge & Co LLP) for the First Interested Party
The Second Interested Party was not represented and did not appear
David Hart QC (instructed by Bird & Bird LLP) for the Third and Fourth Interested Parties
Hearing dates: 25-26 February 2013
Crown Copyright ©
Mr Justice Hickinbottom:
The Background to the Waste Framework Directive
"1. Union policy on the environment shall contribute to pursuit of the following objectives:
- Preserving, protecting and improving the quality of the environment,
- Protecting human health,
- Prudent and rational utilisation of resources,
- Promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.
2. Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventative action should be taken, that environmental damage should be rectified at source and that the polluter should pay…".
"The first objective of any waste policy should be to minimise the negative effects of the generation and management of waste on human health and the environment…." (Recital (6)).
"28. This Directive should help move the EU closer to a 'recycling society', seeking to avoid waste generation and to use waste as a resource. In particular, the Sixth Community Environment Action Programme calls for measures aimed at ensuring the source separation, collection and recycling of priority waste streams. In line with that objective and as a means to facilitating or improving its recovery potential, waste should be separately collected if technically, environmentally and economically practicable, before undergoing recovery operations that deliver the best overall environmental outcome…".
29. Member States should support the use of recyclates…".
The Waste Framework Directive
(b) preparing for re-use;
(d) other recovery, e.g. energy recovery; and
i.e. a waste hierarchy of (i) prevention, (ii) recovery and (iii) disposal, and, within "recovery", a hierarchy of (i) re-use, (ii) recycling and (iii) energy or other recovery. Recital (6) indicates that, "Waste policy should… aim at reducing the use of resources, and favour the practical application of the waste hierarchy". In that connection, Article 4(2) provides that this hierarchy is subject to the overarching aim of achieving "the best overall environmental outcome":
"… Member States shall take measures to encourage the options that deliver the best overall environmental outcome. This may require specific waste streams departing from the hierarchy where this is justified by life-cycle thinking on the overall impacts of generation and management of waste."
1. Member States shall take the necessary measures to ensure that waste undergoes recovery operations, in accordance with Articles 4 and 13.
2. Where necessary to comply with paragraph 1 and to facilitate or improve recovery, waste shall be collected separately if technically, environmentally and economically practicable and shall not be mixed with other waste or other material with different properties.
Re-use and recycling
1. Member States shall take measures, as appropriate, to promote the re-use of products and preparing for re-use activities, notably by encouraging the establishment and support of re-use and repair networks, the use of economic instruments, procurement criteria, quantitative objectives and other measures.
Member States shall take measures to promote high quality recycling and, to this end, shall set up collections of waste where technically, environmentally and economically practicable and appropriate to meet the necessary quality standards for the relevant recycling sectors.
Subject to Article 10(2), by 2015 separate collection shall be set up for at least the following: paper, metal, plastic and glass."
I shall refer to the paragraphs that comprise Article 11(1) as "the first paragraph", "the second paragraph" and "the third paragraph" respectively.
"The combination of terms 'technically, environmentally and economically practicable' describes the preconditions for Member States being, to varying extents, obliged to set up separate collection under Articles 10 and 11…. The wording has been introduced into the [Waste Framework Directive] without any preceding examples in EU waste management legislation.
'Technically practicable' means that the separate collection may be implemented through a system which has been technically developed and proven to function in practice. 'Environmentally practicable' should be understood such that the added value of ecological benefits justify possible negative environmental effects of the separate collection (e.g. additional emissions from transport). 'Economically practicable' refers to a separate collection which does not cause excessive costs in comparison with the treatment of a non-separated waste stream, considering the added value of recovery and recycling and the principle of proportionality."
This guidance suggests that the phrase "technically, environmentally and economically practicable" is used in the Directive as a term of art, importing the principle of proportionality and demanding a sophisticated context-driven exercise of judgment, balancing (amongst other things) the positive and negative environmental and economic effects of separate collection. This term is here clearly used as a term of art; and no party suggested that I should depart from this guidance in respect of it.
i) Article 11(2) requires Member States to take measures designed to achieve particular targets, e.g. by 2020, preparing for re-use and recycling a minimum of 50% by weight of paper, metal, plastic and glass from households.
ii) In line with the primary objective, Article 13 requires Member States to take necessary measures to ensure that waste management is carried out without endangering human health and without harming the environment. This to an extent chimes with Article 4(2), which makes the waste hierarchy subservient to "the best overall environmental outcome" (see paragraph 15 above).
iii) Article 28 requires Member States to ensure that their competent authorities establish a waste management plan or plans, analysing the current waste management and setting out:"… the measures to be taken to improve environmentally sound preparing for re-use, recycling, recovery and disposal of waste and an evaluation of how the plan will support the implementation of the objectives and provisions of this Directive."
"Measures to promote high quality recycling including the setting up of separate collections of waste where technically, environmentally and economically practicable and appropriate to meet the necessary quality standards for the relevant recycling sectors."
"(1) An establishment or undertaking which collects waste paper, metal, plastic or glass must, from 1st January 2015, take all such measures to ensure separate collection of that waste as are available to the establishment or undertaking in that capacity and are –
(a) technically, environmentally and economically practicable; and
(b) appropriate to meet the necessary quality standards for the relevant recycling sectors.
(2) For the avoidance of doubt, co-mingled collection (being the collection together with each other but separately from other waste of waste streams intended for recycling with a view to subsequent separation by type and nature) is a form of separate collection.
(3) Every waste collection authority must, when making arrangements for the collection of waste paper, metal, plastic and glass, ensure that those arrangements are by way of separate collection."
"(1) This regulation applies from 1st January 2015.
(2) Subject to paragraph (4), an establishment or undertaking which collects waste paper, metal, plastic or glass must do so by way of separate collection.
(3) Subject to paragraph (4), every waste collection authority must, when making arrangements for the collection of waste paper, metal, plastic or glass, ensure that those arrangements are by way of separate collection.
(4) The duties in this regulation apply where separate collection –
(a) is necessary to ensure that waste undergoes recovery operations in accordance with Articles 4 and 13 of the Waste Framework Directive and to facilitate or improve recovery; and
(b) is technically, environmentally and economically practicable."
The Main Issue: The Parties' Submissions
The Directive's Requirements in respect of Technical, Environmental and Economic Practicability
i) a general measure setting out principles or legal context (R (Incorporated Trustees of the National Council on Ageing (Age Concern England)) v Secretary of State for Business, Enterprise and Regulatory Reform  3 CMLR 4 at paragraphs 41-3);
ii) measures adopted by regional or local authorities, reflecting European Union recognition of multi-level, devolved governance (Hansa Fleisch Ernst Mundt GmbH v Landrat des Kreises Schleswig-Flensburg  ECR I-5567 at paragraph 23; and R (Horvath) v Secretary of State for Environment, Food and Rural Affairs  ECR I-6355 at paragraphs 49-50); and
iii) a system whereby the directive obligation is enforced by criminal sanctions, policed by a body assigned that task by the Member State (see R (Morge) v Hampshire County Council  UKSC 2 at ).
"In practical implementation and enforcement, specific circumstances and the context of the waste management situation, as well as the requirements of the legislation, will always need to be taken into account."
Indeed, as a matter of law, as I have indicated, the test for technical, environmental and economical practicability not only permits but demands consideration of the particular collection circumstances.
"A good scheme needs to demonstrate flexibility in a number of different areas:
? Flexible to meet local circumstances – No two areas within a local authority are the same due to varying socio-demographics leading to varying waste generation and composition, and to housing type and space available for storing recyclables containers. Therefore local authorities should recognise genuine differences in household circumstances and not force 'one size fits all' solutions. It may be necessary to vary systems to accommodate different local circumstances…"
The Main Issue: Discussion
i) Mr Straker suggests that, in the opening of Article 10(2), "Where …" is used as part of a clarificatory clause, meaning: "Where, because the waste is covered by this Directive, it is necessary to comply with the requirement to take necessary measures to ensure waste undergoes recovery operation…". However, (a) the scope of the Directive in respect of the waste covered is dealt with in Article 2, and Mr Straker was unable to say why it might have been considered necessary to repeat that limitation at all, or why it might have been considered necessary to have repeated that limitation in Article 10(2) in respect of recovery operations but not elsewhere; and (b) Mr Straker did not refer me to any other instance in the Directive of "where" being used in this way. In fact, "where" is used elsewhere in the relevant articles as Mr Lewis submits it is used here – to import a limitation on an obligation. The second paragraph of Article 11(1) provides:"Member States shall take measures to promote high quality recycling and, to this end, shall set up collections of waste where technically, environmentally and economically practicable and appropriate to meet the necessary quality standards for the relevant recycling sectors" (emphasis added).As a matter of construction, it is overwhelmingly more likely that "Where…" in the opening of Article 10(2) has the same function: it is equivalent to "if".
ii) I also accept Mr Lewis's submission that "Where necessary…" governs both "to comply with paragraph 1" and "to facilitate or improve recovery". There is no comma after the first part of the phrase, as there might (and should) be if we were moving from a clarification (or limitation) clause, to a purposive clause: but, in any event, where the draftsman wished to indicate a purposive clause elsewhere, he does not appear to have been reticent to include the words "in order to". Examples abound, but one can be found in the opening words of Article 11(2). Furthermore, whilst I do not consider that support for this interpretation is needed from any other language versions, it seems to me that the French version of the opening to Article 10(2) is, as Mr Hart submitted, in fact supportive:"Lorsque cela est nécessaire pour le respect du paragraphe 1 et pour faciliter ou améliorer la valorisation…" (emphasis added).
iii) I concede that importing those various limitations on the obligation separately to collect paper, metal, plastic and glass in the third paragraph of Article 11(1) could have been done more elegantly than by way of reference back to the limitations on separate collection in Article 10(2) – although, given that recycling (covered by Article 11) is a subset of recovery (Article 10), there is some rationale for incorporating requirements from the latter into the former – but, if the only limitation on the obligation was (as Mr Straker submits) technical, environmental and economic practicability, the draftsman could have been expected simply to have used that phrase, as he has done in the second paragraph of Article 11(1). To import that limitation alone by reference back to Article 10(2) would be a particularly clumsy, if not obtuse, device. I do not regard the importation from Article 10(2) of the separate obligation not to re-mix to be of any moment – it is not a limitation on separate collection, but rather a restriction on re-mixing waste once separately collected (a somewhat different thing). Although this does not assist any party's contentions in this claim, it is noted that the restriction on re-mixing is not imported or set out in respect of the obligation to collect separately in the second paragraph of Article 11(1).
iv) I can deal briefly with one further submission made by Mr Straker. He submitted that, if, before an obligation to collect the four waste streams separately arises, such collection must be necessary to ensure the waste hierarchy is respected (Article 4) and that human health and the environment is not harmed (Article 13) and to facilitate and improve recovery, then separate collection is unlikely to be required much, if at all, in practice: for example, there would be few occasions where it is required to avoid harm to human health. That, he submitted, could not have been the intention of the Directive. However, that mischaracterises Mr Lewis's submission, which was that, before the obligation to collect separately under Article 11(1) arises, such collection must be necessary to ensure that waste undergoes recovery operations and (disjunctive here) to facilitate or improve such operations, any operations undergone being required to be performed in accordance with the waste hierarchy provisions and Article 13. That interpretation does not mean that separate collection is not required merely because it can be shown that it is not necessary for the protection of human health.
i) He submitted that it was open to the European Parliament and Council to determine that separate collection was necessary in furtherance of the Directive's aims, subject only to the practicability requirement. He submitted that it was unsurprising that they had made that determination: on the evidence, it was clear that it was necessary in all circumstances of collection throughout the Union.
ii) He relied upon Paragraph 4.4 of the Commission Guidance (quoted at paragraph 19 above), in which it states:"The combination of terms 'technically, environmentally and economically practicable' describes the preconditions for Member States being, to varying extents, obliged to set up separate collection under Articles 10 and 11…".He submitted that that suggested that these were the only preconditions for the obligations under Article 10 and 11 to collect waste separately. In support of that proposition, he also relied upon Paragraph 4.3.3 of the Guidance, which states:"… [The third paragraph of Article 11(1)] contains a reference to Article 10(2)…, and by this to the condition that the separate collection of these waste streams is "technically, environmentally and economically practicable…. The viability of separate collection of the dry fractions from household waste has been demonstrated by longstanding practice and experience in many Member States. Therefore, separate collection of these waste streams should in principle also be introduced in the remaining Member States, provided the above mentioned preconditions are met."
iii) Even without the necessity requirement, Mr Straker submitted that "necessity" still played a part in the restriction of the obligation to collect separately; because that obligation was limited by the practicability requirement, and one factor within that balancing exercise was the extent to which separate collection was necessary for the achievement of the aims and objectives of the Directive, which include the need for waste recovery and recycling in line with the waste hierarchy.
iv) The second paragraph of Article 11(1) imposes a general obligation to collect waste separately. The third paragraph imposes a specific obligation to collect paper, metal, plastic and glass separately. Both obligations are restricted by the practicability requirement. The general obligation is otherwise only restricted by the requirement that the obligation is only imposed where (here, clearly meaning "if") "appropriate to meet the necessary quality standards for the relevant recycling sectors". There was some debate before me as to what is meant by "necessary quality standards", and whether those standards are the same as, or different from, the standards implicit in the phrase "high quality recycling" used earlier in the paragraph. That is a debate with which I am not concerned: it does not directly impact upon the issues I have to decide. However, Mr Straker submitted that it would be curious, and inherently unlikely, that the limitations on the specific obligation were greater than those on the general obligation, as (he said) would be the case of Mr Lewis's construction.
"… [T]he Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level."
Article 5(4) sets out the principle of proportionality, thus:
"… [T]he content and form of Union actions shall not exceed what is necessary to achieve the objectives of the Treaties."
The European Court has consistently held that that principle "requires that measures adopted by Community institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question" (R v Ministry of Agriculture, Fisheries and Food ex parte National Farmers Union  2 CMLR 1125 at paragraph 96). Those principles are expressly recognised in Recital (49) of the Waste Framework Directive, which confirms the primary objective of the Directive, and expressly states that the Directive does not go beyond what is necessary in order to achieve that objective. In the light of those principles, and their express recognition in the Directive, it would be very strange indeed if the European Parliament and Council had determined in November 2008 that it was necessary for the four relevant streams of waste to be separately collected throughout the Union.
i) Article 191 of the Treaty on the Functioning of the European Union recognises that high level of protection of the environment and human health must "[take] into account the diversity of situations in the various regions of the Union" (Article 191(2), quoted in paragraph 6 above).
ii) The Waste Framework Directive itself acknowledges, specifically in relation to targets for re-use and recycling, that:"Member States maintain different approaches to the collection of household wastes and wastes of a similar nature and composition. It is therefore appropriate that such targets take account of the different collection systems in different Member States " (Recital (41).
iii) Article 4(2) of the Directive allows Member States to depart from the waste hierarchy if justified by "life-cycle thinking" in the context of "the best overall environmental outcome". Article 13 provides that national authorities shall take necessary measures to ensure that waste management is carried out without endangering human health or the environment: but even Article 13 is not unconditional. It allows national authorities to permit disposal or recovery operations even when they consider they will harm human health or the environment, provided there is sufficient reason to do so (Ardley Against Incineration v Secretary of State for Communities and Local Government  EWHC 2230 (Admin). Thus, Article 10(1), which refers to Article 4 and 13, inherently grants national authorities a wide discretion as to the measures taken to ensure that waste undergoes recovery operations in accordance with the specified requirements of those two articles.
iv) The Commission envisages circumstances in which co-mingling will be appropriate in terms of the Directive (see paragraph 63 below).
v) There is evidence from local councils as to the need for separate collection, and where, at least arguably, recovery by way of separate collection would be detrimental to the overall environmental outcome, because of the higher carbon emissions in such collection system and/or the amount of aggregate recyclables collected may in fact be considerably higher if streams are co-mingled, to the extent that any potentially recyclable waste that has to be disposed of because of (e.g.) contamination is far outweighed by the saving in waste disposal overall. This evidence goes to both practicability and necessity.
vi) But there is also evidence from the Claimants themselves. In the response of the Fourth Defendant (D S Smith Paper Limited) to the consultation on amending Regulation 13 of the 2011 Regulations, they said that their preference would be for the co-mingled collection of plastic bottles and cans (potentially to be extended to all domestic plastics and cans), because plastic bottles and cans can be effectively and economically sorted. In their response, the Fifth Defendant (Novelis UK Limited), stressed that they were "not opposed to co-mingling per se"; and their concern was over the usability of secondary resources. It appears to be common ground that, whilst glass is a well-recognised potential contaminant, metal and plastic can be separated at a stage later than kerb-side without any significant contamination or other relevant disadvantage. If the Claimants' construction of the Directive were true, however, subject only to the practicability requirement, it would require the separate collection of such steams of waste even if such collection were unnecessary for the achievement of any Directive objective.
"The [Waste Framework Directive] does not include an express statement covering the co-mingled collection of different recyclable waste streams (as one co-mingled steam).
As a starting point, it should be borne in mind that in accordance with [the third paragraph of] Article 11(1)…, and subject to the conditions set out in this provision, there is an obligation to have in place by 2015 separate collection of paper, metal, plastic and glass. Separate collection is defined as waste-stream-specific separate collection….
On the other hand, setting up a separate collection is also subject to the principle of proportionality (subject to Article 10(2) [of the Directive]: necessity and technical, environmental and economic practicability). Considering the aim of separate collection is high-quality recycling, the introduction of a separate collection system is not necessary if the aim of high-quality recycling can be achieved just as well with a form of co-mingled collection.
So, co-mingled collection of more than one single waste streams may be accepted as meeting the requirement for separate collection, but the benchmark of 'high-quality recycling' of separately collected single waste streams has to be examined; if subsequent separation can achieve high-quality recycling similar to that achieved with separate collection, then co-mingling would be in line with Article 11 [of the Directive] and the principles of waste hierarchy. Practically, this usually excludes co-mingled collection of bio-waste and other 'wet' waste fractions with dry fractions such as e.g. paper. On the other hand, subject to available separation technology, the co-mingled collection of certain dry recyclables (e.g. metal and plastic) should be possible, if these materials are being separated to high quality standards in a subsequent treatment process." (emphasis added).
The Main Issue: Conclusion
The Failure Properly to Consult
The Application to Refer Issues to the Court of Justice of the European Union